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Child Maintenance and Other Payments Bill


Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

26

 

(3)   

The court shall not allow the application under subsection (2) of money

found on a search under this section if it is satisfied that the money does

not belong to the person searched.

(4)   

The court may exercise the powers conferred on it by section 39M(2)

and (5) without the need for an application where money found on a

5

search under this section is applied towards payment of the amount in

respect of which a curfew order is made.

39O     

Monitoring of curfew orders

(1)   

A curfew order shall—

(a)   

provide for a person’s compliance with the requirements

10

imposed by the order to be monitored; and

(b)   

make a person specified in the order responsible for that

monitoring.

(2)   

The court may not make a curfew order unless—

(a)   

it has been notified by the Commission that arrangements for

15

monitoring compliance with the requirements imposed by such

orders are available in the area in which the place proposed to

be specified in the order is situated and the notice has not been

withdrawn;

(b)   

it is satisfied that the necessary provision can be made under

20

those arrangements; and

(c)   

it has the consent of any person (other than the person against

whom the order is to be made) whose co-operation is necessary

to secure the monitoring of compliance with the requirements

imposed by the order.

25

(3)   

If a curfew order cannot be made because of the absence of any consent

required by subsection (2)(c), the court may treat the application for the

order as an application under section 40 (or, in the case of an

application made to the sheriff, as an application under section 40A).

(4)   

The Secretary of State may by regulations make provision as to—

30

(a)   

the cases or circumstances in which the person responsible for

monitoring a person’s compliance with the requirements

imposed by a curfew order may allow that person to be absent

from the place specified in the curfew order during a period so

specified; and

35

(b)   

the requirements which may be imposed in connection with

such an absence.

39P     

Breaches of curfew orders

(1)   

The person responsible for monitoring a person’s compliance with the

requirements imposed by a curfew order, or the Commission, may

40

apply to the court where it appears that the person subject to the

requirements in question has failed to comply with—

(a)   

any of those requirements; or

(b)   

any requirements imposed by virtue of section 39O(4).

(2)   

On any such application the court shall (in the presence of the person

45

subject to the requirements in question) inquire as to whether the

person has failed without reasonable excuse to comply with any of

those requirements.

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

27

 

(3)   

If the court is of the opinion that the person has failed without

reasonable excuse to comply with any of those requirements, it may—

(a)   

issue a warrant of commitment against that person; or

(b)   

by order provide for the requirements imposed by the curfew

order to have effect for a specified further period.

5

(4)   

A warrant issued under subsection (3)(a) shall order the person against

whom it is issued—

(a)   

to be imprisoned for a period specified in the warrant; but

(b)   

to be released (unless in custody for some other reason) on

payment of the amount in respect of which the curfew order in

10

question was made.

(5)   

A warrant issued under subsection (3)(a) may be directed to such

person or persons as the court issuing it thinks fit.

(6)   

The power conferred by subsection (3)(b) may not be exercised so as to

provide for the requirements imposed by the curfew order to have

15

effect for a period exceeding 6 months after the making of the order

under that subsection.

(7)   

Where, following the issue of a warrant under subsection (3)(a), part of

the amount specified in the curfew order is paid to any person

authorised to receive it, the court may, on an application by the

20

Commission or the person against whom the warrant was issued—

(a)   

reduce the period specified in the warrant; or

(b)   

order the release of the person against whom the warrant was

issued.

(8)   

On the hearing of an application made under subsection (7) the

25

Commission may make representations to the court as to which of the

powers conferred by that subsection it would be appropriate for the

court to exercise, and the person against whom the warrant was issued

may reply to those representations.

39Q     

Effect of custody on curfew orders and power to make curfew orders

30

(1)   

The court may not make a curfew order against a person at any time

when the person is in custody for any reason.

(2)   

The running of the period during which the requirements imposed by

a curfew order have effect shall be suspended for the whole of any day

during any part of which the person against whom the order is made is

35

in custody for any reason.

(3)   

If the period during which the requirements imposed by a curfew order

have effect would have begun to run but for its being suspended by

virtue of this section, that period shall instead begin to run with the first

day when its running is no longer suspended.

40

39R     

Power to make supplementary provision about curfew orders:

England and Wales

(1)   

The Secretary of State may by regulations make provision for England

and Wales with respect to curfew orders.

(2)   

The regulations may, in particular, make provision—

45

(a)   

as to the form and content of a curfew order;

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

28

 

(b)   

allowing an application for a curfew order to be renewed where

no curfew order is made;

(c)   

that a statement in writing to the effect that wages of any

amount have been paid during any period to a person,

purporting to be signed by or on behalf of that person’s

5

employer, shall be evidence of the facts stated;

(d)   

that a justice of the peace may issue a summons to a person to

appear before a magistrates’ court and (if that person does not

appear) may issue a warrant for that person’s arrest;

(e)   

that, for the purpose of securing a person’s presence before a

10

magistrates’ court, a justice of the peace may issue a warrant for

that person’s arrest without issuing a summons;

(f)   

as to the execution of a warrant for arrest;

(g)   

for the amendment or revocation of requirements imposed by a

curfew order, on an application made to a magistrates’ court by

15

the Commission or the person against whom the order was

made;

(h)   

similar to that made by sections 39L, 39N and 39O(2) and (3), in

relation to any amendment of a curfew order;

(i)   

as to the exercise by a magistrates’ court of the powers

20

conferred by sections 39M(2) and (3) and 39P(7).

(3)   

Regulations under subsection (2)(g) may confer power on a

magistrates’ court to substitute for the place or places specified in the

order a place or places in Scotland.

(4)   

Where a magistrates’ court exercises such a power, the functions of the

25

magistrates’ court in relation to the order as so amended shall be

exercisable instead by the sheriff.

39S     

Power to make supplementary provision about curfew orders:

Scotland

(1)   

The Secretary of State may by regulations make provision for Scotland

30

with respect to curfew orders.

(2)   

The regulations may, in particular, make provision—

(a)   

as to the content of a curfew order;

(b)   

that a statement in writing to the effect that wages of any

amount have been paid during any period to a person,

35

purporting to be signed by or on behalf of that person’s

employer, shall be sufficient evidence of the facts stated;

(c)   

for the amendment or revocation of requirements imposed by a

curfew order, on an application made to the sheriff by the

Commission or the person against whom the order was made;

40

(d)   

similar to that made by sections 39L, 39N and 39O(2) and (3), in

relation to any amendment of a curfew order;

(e)   

as to the exercise by the sheriff of the powers conferred by

sections 39M(2) and (3) and 39P(7).

(3)   

Regulations under subsection (2)(c) may confer power on the sheriff to

45

substitute for the place or places specified in the order a place or places

in England and Wales.

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

29

 

(4)   

Where the sheriff exercises such a power, the functions of the sheriff in

relation to the order as so amended shall be exercisable instead by a

magistrates’ court.

(5)   

The power of the Court of Session by Act of Sederunt to regulate the

procedure and practice in civil proceedings in the sheriff court shall

5

include power to make provision—

(a)   

as to the form of a curfew order;

(b)   

allowing an application for a curfew order to be renewed where

no curfew order is made;

(c)   

that the sheriff may issue a citation to a person to appear before

10

the sheriff and (if the person does not appear) may issue a

warrant for the person’s arrest;

(d)   

that, for the purpose of securing a person’s presence before the

sheriff, the sheriff may issue a warrant for the person’s arrest

without issuing a citation;

15

(e)   

as to the execution of a warrant of arrest.”

27      

Commitment to prison

(1)   

In section 40 of the Child Support Act 1991 (c. 48) (commitment to prison),

before subsection (3) insert—

“(2A)   

The Commission may apply to a magistrates’ court for the issue of a

20

warrant committing a person to prison where—

(a)   

it has sought to recover an amount from the person by means of

taking enforcement action by virtue of section 35 or 38, or by

means of a third party debt order or a charging order by virtue

of section 36;

25

(b)   

the whole or any part of the amount remains unpaid; and

(c)   

the Commission is of the opinion that there has been wilful

refusal or culpable neglect on the part of the person from whom

it has sought to recover the amount (“the liable person”).

(2B)   

For the purposes of subsection (2A)(a), the Commission is to be taken

30

to have sought to recover an amount by means of a charging order if an

interim charging order has been made, whether or not any further steps

have been taken to recover the amount.

(2C)   

On an application under subsection (2A) the court shall (in the presence

of the liable person) inquire as to—

35

(a)   

the liable person’s means; and

(b)   

whether there has been wilful refusal or culpable neglect on the

part of the liable person.

(2D)   

On an application under subsection (2A) the court shall not question—

(a)   

the liability order by reference to which the Commission acted

40

as mentioned in paragraph (a) of that subsection; or

(b)   

the maintenance calculation by reference to which that liability

order was made.”

(2)   

For subsection (10) of that section, substitute—

“(10)   

On acting as mentioned in subsection (3), the court may order the liable

45

person to be searched.

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

30

 

(10A)   

Any money found on such a search shall, unless the court otherwise

directs, be applied towards payment of the relevant amount; and the

balance (if any) shall be returned to the liable person.

(10B)   

The reference in subsection (10A) to the relevant amount is—

(a)   

where the order under subsection (10) is made by virtue of the

5

court acting under subsection (3)(a), to the amount mentioned

in subsection (4)(a);

(b)   

where the order under subsection (10) is made by virtue of the

court acting under subsection (3)(b), to the amount mentioned

in subsection (4)(a)(i).

10

(10C)   

The court shall not allow the application under subsection (10A) of

money found on a search under subsection (10) if it is satisfied that the

money does not belong to the person searched.”

(3)   

In section 40A of that Act (commitment to prison: Scotland), before subsection

(1) insert—

15

“(A1)   

The Commission may apply to the sheriff for the issue of a warrant

committing a person to prison where—

(a)   

it has sought to recover an amount from the person by means of

taking enforcement action by virtue of section 35 or 38, or by

means of a third party debt order or a charging order by virtue

20

of section 36;

(b)   

the whole or any part of the amount remains unpaid; and

(c)   

the Commission is of the opinion that there has been wilful

refusal or culpable neglect on the part of the person from whom

it has sought to recover the amount (“the liable person”).

25

(A2)   

For the purposes of subsection (A1)(a), the Commission is to be taken

to have sought to recover an amount by means of a charging order if an

interim charging order has been made, whether or not any further steps

have been taken to recover the amount.

(A3)   

On an application under subsection (A1), the sheriff shall (in the

30

presence of the liable person) inquire into—

(a)   

the liable person’s means; and

(b)   

whether there has been wilful refusal or culpable neglect on the

part of the liable person.

(A4)   

On an application under subsection (A1), the sheriff shall not

35

question—

(a)   

the liability order by reference to which the Commission acted

as mentioned in paragraph (a) of that subsection; or

(b)   

the maintenance calculation by reference to which that liability

order was made.”.

40

(4)   

After subsection (7) of that section, insert—

“(7A)   

On acting as mentioned in subsection (1), the sheriff may order the

liable person to be searched.

(7B)   

Any money found on such a search shall, unless the sheriff otherwise

directs, be applied towards payment of the relevant amount; and the

45

balance (if any) shall be returned to the liable person.

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

31

 

(7C)   

The reference in subsection (7B) to the relevant amount is—

(a)   

where the order under subsection (7A) is made by virtue of the

court acting under subsection (1)(a), to the amount mentioned

in subsection (2)(a);

(b)   

where the order under subsection (7A) is made by virtue of the

5

court acting under subsection (1)(b), to the amount mentioned

in subsection (2)(a)(i).

(7D)   

The sheriff shall not allow the application under subsection (7B) of

money found on a search under subsection (7A) if the sheriff is satisfied

that the money does not belong to the person searched.”

10

28      

Disqualification for driving

(1)   

In section 40B of the Child Support Act 1991 (c. 48) (disqualification from

driving), for the heading and subsection (1) substitute—

“40B    

Disqualification for holding or obtaining driving licence

(A1)   

The Commission may apply to the court for an order disqualifying a

15

person for holding or obtaining a driving licence where—

(a)   

it has sought to recover an amount from the person by means of

taking enforcement action by virtue of section 35 or 38, or by

means of a third party debt order or a charging order by virtue

of section 36;

20

(b)   

the whole or any part of the amount remains unpaid; and

(c)   

the Commission is of the opinion that there has been wilful

refusal or culpable neglect on the part of the person from whom

it has sought to recover the amount (“the liable person”).

(A2)   

Disqualification by an order under subsection (A1) (a “disqualification

25

order”) shall be for such period not exceeding two years as the court

may specify in the order.

(A3)   

For the purposes of subsection (A1)(a), the Commission is to be taken

to have sought to recover an amount by means of a charging order if an

interim charging order has been made, whether or not any further steps

30

have been taken to recover the amount.

(A4)   

On an application under subsection (A1) the court shall (in the presence

of the liable person) inquire as to—

(a)   

whether the liable person needs a driving licence to earn a

living;

35

(b)   

the liable person’s means; and

(c)   

whether there has been wilful refusal or culpable neglect on the

part of the liable person.

(A5)   

On an application under subsection (A1) the court shall not question—

(a)   

the liability order by reference to which the Commission acted

40

as mentioned in paragraph (a) of that subsection; or

(b)   

the maintenance calculation by reference to which that liability

order was made.

(1)   

If, but only if, the court is of the opinion that there has been wilful

refusal or culpable neglect on the part of the liable person, it may—

45

(a)   

make a disqualification order against the liable person; or

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

32

 

(b)   

make such an order but suspend its operation until such time

and on such conditions (if any) as it thinks just.”

(2)   

For subsection (10) of that section, substitute—

“(10)   

On making a disqualification order, the court may order the liable

person to be searched.

5

(10A)   

Any money found on such a search shall, unless the court otherwise

directs, be applied towards payment of the amount due; and the

balance (if any) shall be returned to the liable person.

(10B)   

The court shall not allow the application under subsection (10A) of

money found on a search under subsection (10) if it is satisfied that the

10

money does not belong to the person searched.

(10C)   

The court may exercise the powers conferred on it by subsection (5)

without the need for an application where money found on a search

under subsection (10) is applied towards payment of the amount due.”

Debt management powers

15

29      

Power to treat liability as satisfied

After section 41B of the Child Support Act 1991 (c. 48) insert—

“41C    

Power to treat liability as satisfied

(1)   

The Secretary of State may by regulations—

(a)   

make provision enabling the Commission in prescribed

20

circumstances to set off liabilities to pay child support

maintenance to which this section applies;

(b)   

make provision enabling the Commission in prescribed

circumstances to set off against a person’s liability to pay child

support maintenance to which this section applies a payment

25

made by the person which is of a prescribed description.

(2)   

Liability to pay child support maintenance shall be treated as satisfied

to the extent that it is the subject of setting off under regulations under

subsection (1).

(3)   

In subsection (1), the references to child support maintenance to which

30

this section applies are to child support maintenance for the collection

of which the Commission is authorised to make arrangements.”

30      

Power to accept part payment of arrears in full and final satisfaction

After section 41C of the Child Support Act 1991 (inserted by section 29 of this

Act) insert—

35

“41D    

Power to accept part payment of arrears in full and final satisfaction

(1)   

The Commission may, in relation to any arrears of child support

maintenance, accept payment of part in satisfaction of liability for the

whole.

(2)   

The Secretary of State may by regulations make provision with respect

40

to the exercise of the power under subsection (1).”

 
 

 
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